Canadian Occupational Safety

10 Canadian Occupational Safety www.cos-mag.com Ontario including sexual harassment in OHSA New enforcement provisions, expanded duty to protect workers T he Ontario government recently signalled its commitment to ensure employers have new, specifi c occupational health and safety legal obligations to prevent sexual harassment and violence. The plan, It's Never OK: An Action Plan To Stop Sexual Violence And Harassment, was announced in March. It indicates the government intends to do its part to establish an Ontario where everyone lives in safety and is free from the threat, fear or experience of sexual violence and harassment. The plan includes a number of com- mitments that are specifi c to the Occupational Health and Safety Act (OHSA) and some that go far beyond commitments related to OHS legisla- tion and enforcement: • Introduce legislation to strengthen provisions related to sexual violence and harassment in the workplace, on campus, in housing and through the civil claim process. No details of whether this will be restricted to OHS or human rights legislation or other measures have been provided. • Enhance workplace laws to strengthen enforcement under the OHSA, including enactment of a defi nition of sexual harassment, a specifi c employer duty respecting harassment and establishing a code of practice to help employers develop stronger sexual harassment policies. (The announcement so far is limited to harassment, not violence.) • Numerous additional initiatives to create public awareness to challenge current attitudes and behaviours, including updating health and physical education curriculum for students; developing tools and best practices to support compassion- ate response from law enforcement authorities; strengthening supports provided by hospitals; and creat- ing a pilot program to provide free, independent legal advice to sexual assault survivors whose cases are proceeding toward a criminal trial. CURRENT OBLIGATIONS Effective June 15, 2010, provisions known colloquially as Bill 168 added defi nitions of workplace violence and harassment into the Ontario OHSA. It broadly defi ned harassment as "a course of vexatious comment or con- duct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome." It is not tied to personal characteristics or grounds such as sex, race, sexual orientation or other matters that are protected grounds, for example, under provisions of human rights legisla- tion. In doing so, the OHSA arguably already includes a broad and all encompassing harassment defi nition including sexual or any other type of personal harassment. Under the current legislation, Ontario employers must take several steps including the following: • Develop a written harassment policy and review the harassment policy at least annually. • Develop and implement a work- place harassment program (requires a procedure for workers to report incidents of harassment to a super- visor or the employer and set out means by which the employer will investigate). • Provide training to workers on the harassment policy and program. WHAT TO EXPECT Gazing into a crystal ball is always diffi - cult. It seems clear, however, that certain amendments to the Ontario OHSA are likely and several others are possible. New defi nition: There will likely be a new and specifi c defi nition of "sexual harassment" added to the OHSA. How a clear defi nition will be arrived at — and how this will improve upon the obligations of employers or future worker rights when Ontario already has the most expansive defi nition of harassment possible — remains to be seen. Perhaps there could be some new rights or remedies related to this par- ticular type of harassment. It is worth noting that two jurisdictions, Saskatch- ewan and Manitoba, defi ne harassment as related to prohibited grounds such as race, creed, religion, colour, sex and sexual orientation (without defi ning sex or sexual harassment). New duty to protect workers: Only one jurisdiction in Canada, Saskatch- ewan, clearly sets out an obligation to ensure, as far as is reasonably practi- cable, that workers are not exposed to harassment respecting any matter or circumstance arising out of employ- ment. Ontario's action plan suggests the OHSA amendments could include a new employer obligation to "make every reasonable effort to protect work- ers from harassment, including sexual harassment in the workplace." It still remains unclear how a specifi c obli- gation to protect workers from sexual harassment would be an improvement on a general duty to protect all workers from all types of harassment. No men- tion is made of supervisory duties to protect workers or worker duties not to harass co-workers. Right to refuse: Something that has not been mentioned in the action plan but will no doubt arise as an issue is the right to refuse. The Ontario OHSA does contain a specifi c right to refuse to work if a worker believes that work- place violence is likely to endanger her. No corresponding refusal right exists in Ontario or elsewhere for a worker who reasonably believes he is subject of an unwanted course of con- duct including any type of harassment. Enforcement provisions: The action plan suggests that an enforce- ment team of inspectors trained to address complaints of workplace harassment, including sexual harass- ment, will enforce the new harassment provisions. OHS inspectors have broad powers to issue compliance orders and stop work orders. Prosecu- tion, the most serious enforcement mechanism, has not to date been used related to harassment, although sev- eral Canadian employers have faced prosecution for failure to protect workers from workplace violence. Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com. PEOPLE&PLACES CHERYL EDWARDS LEGAL LANDSCAPE PEOPLE&PLACES CHERYL EDWARDS LEGAL PEOPLE&PLACES LEGAL PEOPLE&PLACES WHMIS 2015 Instructor's Package with DVD (includes WHMIS 2015 Poster, WHMIS 2015 Handbook, Instructor's Manual and DVD) $ 545 WHMIS 2015 Poster 22x34 $ 29.95 WHMIS 2015 Handbook $ 8.95 WHMIS 2015 Self-Teach Program $ 34.95 WHMIS 2015 Instructor's WHMIS 2015 Handbook 8.95 WHMIS 2015 Online Training $ 34.95/person Phone: 403 232 6950 or Toll Free: 1 800 465 3366 Email: info@danatec.com www.Danatec.com WHMIS 2015 Now Available WHMIS 2015 training product line now available including WHMIS 1988 information NEW

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